Home > Journals > WMBLR > Vol. 6 (2015) > Iss. 2 (2015)
William & Mary Business Law Review
Abstract
This article critically examines the erosion of the negotiability of mortgage promissory notes within the context of the U.S. housing and mortgage market. The authors, Roy D. Oppenheim and Jacquelyn K. Trask-Rahn, argue that the judicial and financial systems have perpetuated a legal fiction surrounding negotiability, primarily driven by public policy concerns and the potential consequences of strict legal adherence. Through a detailed analysis of judicial practices and the behavior of financial institutions, the article highlights systemic abuses that undermine consumer rights and the integrity of the mortgage process. The authors propose a shift from the current reliance on Article 3 of the Uniform Commercial Code (UCC) to Article 9, moving the classification of mortgage promissory notes from negotiable to non-negotiable, and advocating for a return to basic contract law principles that would enhance transparency and protect consumers. By addressing the fundamental flaws in the treatment of negotiable instruments, the article calls for a reevaluation of legal standards to restore fairness and accountability in the mortgage lending landscape.